Giugni v. United States, 3700.

• Decision Date: 08 May 1942
• Docket Number: No. 3700.,3700.
• Citation: 127 F.2d 786
• Parties: GIUGNI et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

127 F.2d 786 (1942)

GIUGNI et al. v. UNITED STATES.

No. 3700.

Circuit Court of Appeals, First Circuit.

May 8, 1942.

COPYRIGHT MATERIAL OMITTED

Homer L. Loomis, of New York City (James R. Beverley, of San Juan, P. R., on the brief) for appellants.

Walter L. Newsom, Jr., of San Juan, P. R., for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

The defendants were found guilty by a jury on both counts of an indictment charging them with conspiring with one another to commit and with committing the crime of wilfully damaging and destroying the motive power of a vessel of foreign registry "with intent to injure and endanger the safety of said vessel," which at the time the acts were done was within the jurisdiction of the United States. After verdict the defendants were sentenced to terms of imprisonment in an institution of the penitentiary type, and they appealed.

The named defendant was the Captain, and the other defendants were the officers and crew, of the tanker Colorado; a vessel admittedly of Italian registry. On June 7, 1940, the Colorado, being in ballast, put into the harbor of San Juan, Puerto Rico, for the purpose of taking on bunkers, that is, 150 tons of fuel oil for use to fire her boilers. No cargo of any sort was either taken on or discharged. While waiting for the fuel oil to be delivered the vessel was seized by the United States Marshal acting under orders made by the United States District Court for Puerto Rico in admiralty case No. 1 entitled Asiatic Petroleum Company v. SS Colorado et al., and deputy United States marshals were assigned to guard the ship both day and night. On June 10, 1940, Italy entered the war as a belligerent and a day or two later, by permission of the port authorities, the fires under the ship's boilers were extinguished.

On November 4, 1940, by order of the District Court the vessel was moved from its anchorage to a point in the San Antonio channel and there securely moored alongside the shore where it remained until May 7, 1941, when it was towed away by the United States Coast Guard. On March 30, 1941, officers and men of the United States Coast Guard boarded the Colorado for the purpose of making an inspection of its moorings and general condition, in the course of which they discovered that the main engine and its auxiliaries, and the boilers and their auxiliaries in the fireroom had been extensively damaged, apparently deliberately. In consequence they arrested all of the ship's officers and crew who until that time had been continuously living on board.

The testimony indicates that Captain Giugni, pursuant to instructions given to him by the Naval Attache of the Italian Embassy in Washington, gave orders to his subordinates for the damaging of the propulsive machinery of his ship, and that the orders were carried out under his supervision during the latter part of March, 1941. The defendants do not deny this, but contend that the damage was done not for the purpose of endangering the safety of the vessel, but only for the purpose of immobilizing it in order to prevent its use by an enemy nation.

The statute under which the indictment was laid, 18 U.S.C.A. § 502, reads, so far as here material, as follows:

"§ 502. Injuring vessels engaged in foreign commerce.

"Whoever shall set fire to any vessel of foreign registry, or any vessel of American registry entitled to engage in commerce with foreign nations, * * * or to the cargo of the same, or shall tamper with the motive power or instrumentalities of navigation of such vessel, * * * while within the jurisdiction of the United States, or, if such vessel is of American registry, while she is on the high sea, with intent to injure or endanger the safety of the vessel or of her cargo, or of persons on board, * * * shall be fined not more than $10,000, or imprisoned not more than twenty years, or both."

The points upon which the defendants rely are (1) that this statute is not applicable to them; (2) that the indictment under which they were tried is insufficient; (3) that the evidence is not sufficient to sustain their convictions; and (4) that the statute, as applied, violates the Fifth Amendment to the Constitution of the United States.

Specifically, under the first point, the defendants contend (1) that the statute applies only to trespassers and not to the owner of a vessel or to its officers and crew; (2) that it applies to ships of foreign registry only when such ships are engaged in foreign commerce, but not to ships of foreign registry laid up in ports of the United States; and (3) that it does not apply to them (the defendants) because it applies only to acts done with both a general criminal intent to perpetrate a wrong and a specific intent to injure the safety of a vessel, neither of which intents can, on the evidence, be imputed to them. We are of the view that all of the contentions made under this point are without merit.

The defendants advance two principal arguments in support of their contention that the above statute, in spite of the broad sweep of its language, does not apply to the owner of a vessel or to its officers or crew. They say, first, that the statute defines only an offense against private property, like a statute defining burglary or malicious mischief for instance, and so, in conformity with the common-law principle which makes statutes of this latter sort inapplicable to an owner who breaks into his own house or destroys his own property, there must necessarily be implied in the statute in question an exception in favor of the owner of a vessel, and that this exception includes an owner's agents, if, in damaging the vessel, they act within the scope of their employment; and second, that the history of the statute clearly indicates that if Congress had intended to include ship-owners and their agents within its scope, it would have expressly so provided. In our view the history of the statute refutes both of these arguments.

Section 502 was originally enacted as Title III of Chapter 30 of the Public Laws of the United States passed by the Sixty-Fifth Congress. 40 Stat. 217, 221. This chapter, which bears the title "An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes", was approved and became law on June 15, 1917. It seems to us clear from the wording of the statute and from the date when it was enacted that Congress must have had in mind and sought to prevent a repetition of acts of deliberate destruction similar to those done on their own ships shortly before by the crews of German vessels at that time in our ports, the results of which acts, at the time the statute was passed, were seriously delaying and impeding our war effort. But, the defendants argue, Congress dealt with the above situation when it enacted § 3 of Title II of the above chapter 30, 50 U.S.C.A. § 193, which in part provides that "It shall be unlawful for the owner or master or any other person in charge or command of any private vessel, foreign or domestic, or for any member of the crew or other person, within the territorial waters of the United States, wilfully to cause or permit the destruction or injury of such vessel." We do not agree.

By its § 1, Title II, 50 U.S.C.A. § 191, is applicable only after the President has declared that a national emergency exists "by reason of actual or threatened war, insurrection, or invasion, or disturbance or threatened disturbance of the international relations of the United States", and it has been held that "emergency pervades the whole title", including its section 3. Marchese et al. v. United States, 5 Cir., 126 F.2d 671, 674; United States v. Martini, D.C., 42 F.Supp. 502, 507, 508. Title III, on the other hand, contains no such emergency clause and from this it seems to us that the above cited cases are correct in holding that the two titles are independent. So, construing the titles together as parts of the same enactment, it seems to us that Congress in Title II, 50 U.S.C.A. § 191 et seq., provided for the protection of private vessels, foreign or domestic, during and after the declaration of a national emergency, without regard to the specific intent with which the actor injured the vessel; but, not satisfied with that, it then went on and in Title III, 18 U.S.C.A. § 502, provided protection for similar vessels even before a national emergency has been declared to exist, provided the forbidden act was done with the specific intent required.

The defendants seek to support their contention that if any statute applies it is § 3 of Title II, by citing to us the legislative history...